Proposition 35: Prohibition on Human Trafficking and Sex Slavery—Criminalizes the Sex Worker and not the Trafficker, By Cynthia Garrity-Bond

But beyond the sound bites and hyperbole of Proposition 35 resides a poorly written law that further criminalizes and discriminates against sex workers and their consensual adult clients.

The importance of the upcoming November 6 election cannot be overstated. Beyond defeating the Republicans War on Women, maintaining the Affordable Care Act and resuscitating a broken economy, brought on by eight years of Bush’s laissez faire policies, California residents will vote on thirteen propositions. Two of them address criminal justice, Prop 34 “End the Death Penalty” and Prop 36, repeal of the “Three Strikes” law of 1994. Both propositions seek to correct bad laws that are unjust, as well as fiscally exacting on the state. The “Three Strikes” law, in its attempt to be tough on crime, instead gives life sentences to non-violent offenders. To date there are 8,800 prisoners currently serving life terms for a third felony conviction—for some, petty theft or drug possession resulted in a life sentence. The “Three Strikes” law was poorly conceived, written, and implemented, just as Proposition 35, the Prohibition on Human Trafficking and Sex Slavery or Californians Against Sexual Exploitation (CASE ACT) is.

On first read Prop 35 appears to have the best interest of “vulnerable women and children held against their will and forced into prostitution for financial gain of human traffickers.” It will increase prison terms for human traffickers, required traffickers to register as sex offenders, increase fines from convicted human traffickers while directing these funds to “victims’ services so survivors can repair their lives, as well as internet restrictions and registrations. So far so good, right? But beyond the sound bites and hyperbole resides a poorly written law that further criminalizes and discriminates against sex workers and their consensual adult clients.

First, the wording of Prop 35 jumps from human slavery to sexual exploitation of women, read here as the CASE Act, or Californians Against Sexual Exploitation (emphasis mine). Under revised Section 3, the law reads, “[To] strengthen laws regarding sexual exploitation . . .” not human trafficking in slavery, but the vague reference to exploitation. Which begs the question, how is this form of exploitation understood? Is all consensual exchange of sex for money considered exploitative? In Martha Nussbaum’s article, “Whether from Reason or Prejudice”: Taking Money for Bodily Services,” she rightly draws comparisons between the prostitute (as sex worker) and six other forms of labor: the factory worker, domestic servant, night-club singer, masseuse, the hypothetical “colonoscopy artist” and my favorite, the philosophy professor, to which I add, the adjunct professor. Nussbaum’s point is well taken, “most people sell their bodies, or the use of them, for money, and we do not usually object to this circumstance in itself.” Morality aside, Nussbaum’s argument situates itself within a legal framework, by refuting the criminalization of prostitution.

While playing upon concerns of the public over human trafficking in women and minors, Prop 35 expands the definition of the human trafficker to now include sex workers and all those associated with them, including children and domestic partners. Section 236.2, if revised, defines “Commercial sex act” as “any sexual conduct on account of which anything of value is given or received by any person.” Vague? How many of us have had sex after a date that included say, dinner? How is the quantitative value to be measured of what was given or received? Under Section 236.2 sex workers can be labeled as pimps and traffickers. If convicted, these women, who many are mothers, must register as sex offenders. One of the many stipulations sex offenders must adhere to is the distance kept between them and schools. Follow the logic here, what does it mean for a mother (as sex worker) to never be allowed to step foot on their child[rens] school campus?

The language of Prop 35 and its proposed protection of minors as trafficked victims can be very misleading. For example, take consensual sex between a teenager (legally considered a minor if younger than eighteen) and another teenage, here understood as eighteen years or older. Legally, sex between the two has been understood as statutory rape or underage sex, now can be defined, as a “commercial sex act” with the older teen. If convicted as having sex with a minor, that young man/teenager is now a human trafficker. The prison sentence is also stiffer for the teen turned trafficker, “five, eight, or twelve years and a fine of not more than five hundred thousand dollars (Section 3.1). Additionally, “consent by a victim of human trafficking who is a minor a the time of commission of the offense is not a defense to a criminal prosecution under this section, “ (3.e) nor is the mistake of age (3.f). In other words, penalties for statutory rape will be greater than those for rape.

Those opposed to Prop 35 have before than a David and Goliath battle. While various sex worker collectives, activists, journalist, as well as California Coalition for Women Prisoners have voiced their opposition, money and a poorly written law with strong endorsements from the likes of Senator Diane Feinstein to the Marc Klass, President of the KlassKids Foundation as well as police organizations are on the side of Yes on 35. By playing upon the publics concern of human trafficking, Prop 35 criminalizes women, many who are mothers, instead of those actually perpetrating trafficking in persons.

For those who reside in California I urge you to do your homework by researching Prop 35 and see who is set to gain financially and politically from its passage. Initiated by the non-profit California Against Slavery (which morphed to exploitation of women) is primarily funded by one person, millionaire Chris Kelly, former Chief Privacy Officer for Facebook who lost to Kamala Harris in the state Attorney General race. To date, Kelly has donated 1.9 million dollars, perhaps an economical investment for future political endeavors as self-proclaimed architect of CASE.

Here are a few links that hopefully serve to make your vote on Proposition 35 an informed and educated one:

Cynthie Garrity-Bond: Feminist theologian and social ethicist, is completing her doctorate at Claremont Graduate University in women studies in religion with a secondary focus in theology, ethics and culture. For the past two years Cynthie has been teaching in the department of theological studies at Loyola Marymount University where she completed both her BA and MA in Theology. Her research interests includes feminist sexual theology, historical theology with particular emphasis on religious movements of women, agency and resistance to ecclesial authority, embodiment, Mariology and transnational feminisms. Having recently returned from Southern Africa, Cynthie is researching the decriminalization of prostitution from a theological perspective.

8 replies

Cynthie: This is such a profound blog. You always impress me with your critical analysis of different issues in light of a feminist and faith perspective. This particular reflection on these proposed legislative measures are timely in a U.S. political climate where women’s bodies are treated as “objects” and “legislation.” Specific to this election it is not just “women’s bodies” that are being exploited for capital gain. It is the 99% as advocated by the “Occupy Movement,” locally and on a national level. As a person of faith, I wish that religious and political leaders would rise above their biases [and agendas] and really listen to the needs of the people. Ethics in the United Stated should be based on a “moral compass” rather than “political agendas.” Ethics, whatever your religious denomination is more grey than “black” and “white.” Your comment about the inadequacy of these bills is striking to me too. It makes me question the critical thinking skills, or lack thereof, [of] individuals who are supposed to represent the best interests of the people. Sadly, I think critical thinking skills are lacking in an U.S. educational system that is poorly funded over and against monetary and political agendas that support prisons and the military. Thus, the majority U.S. citizens base their decision[s] on “sound bites.” For myself, minimally, I will do my best to engage these two issues in conversation within my circles of influence. I will also engage the other eleven initiatives from a feminist and social justice perspective. Thank you for your critical analysis on this topic. Thank you for helping me and others connect the dots between multiple manifestations of patriarchy that continue to subjugate women’s voices and their bodies. In our respective faith traditions we need more individuals like you who are political astute, feminist, and adhere to the authentic gospel values and witness of Jesus.

If you are motivated to research the proposition, then my post has been successful. I agree, it is amazing to read the surface agenda as written in the Calf. voters guide. Researching prop 35 has been a valuable lesson in not taking on face value what I read.
Thank you for your affirming response.

Like the RCchurch. They do not want us to be educated so they can manipulated our minds and bodies to their own advantage. Sadly, the elite few who have created these structures have the power and money to maintain them. Four more years! President Obama may not be supported by all people but I do think that he is authentic and has a vision to continue to move our country in a positive direction. I pray for him and us in this process.

I read and reread the wording of the law at the CASE act link that you posted, and it seems clear that a violation would require duress, force, or “violation of liberty” of another person. “Anything of value” is vague, but it’s pretty standard legal language similar to existing prostitution laws, and they don’t get used to charge people for having sex after a dinner date. And the references to minors all appear related to commercial sex, not any-and-every sex between teens.

I agree that there are some arguments for decriminalizing prostitution (as a separate issue from pimping/trafficking). But I’m just not seeing anything in this law’s wording that “criminalizes the sex worker and not the trafficker” as your headline says.

What I have experienced as a long time sex worker activist, is that most sex workers have engaged in practices that would fall under pimping or pandering type laws (living off the avails), such as working collectively, sharing phone numbers of clients or handing money to a friend while one goes on a date. The laws that criminalize third parties mean that adult children, domestic partners, etc, can be charged as pimps and I have heard of a great many cases where this happens.

‘Charging up’ or over charging (piling on a heap of serious charges) to elicit plea bargains is also very common practice. In addition police put a great deal of pressure on anyone they apprehend to ‘turn in’ someone else, ostensibly looking for someone more culpable. They threaten those apprehended with escalated charges and punishments.

These practices, COMBINED with the extremely broad definitions of coercion, commercial sex, etc are what has numerous attorneys and organizations from the ACLU to California Public Defenders Association to California Attorneys for Criminal Justice extremely concerned about this legislation.

For example, if you look at the definition of ‘coercion’ you can see that it refers to providing a controlled substance. Marijuana use (a controlled substance) is ordinary enough. Imagine being caught smoking and find out that you are now being asked to turn in the person you are with for a charge that could land them in prison for 15 years, or that you could be charged that way.

Most people understand that the police and DA do use their powers to overcharge or to secure plea bargains, so that broad language will exacerbate this situation. As you can imagine this impacts the communities of young people surviving on the street, creating an atmosphere of pressure and distrust, as they risk being charged and pressured in their communities.

I agree that on the surface this initiative seems to target those who use force against others, but there has been a great deal of criticism from attorneys and organizations which are concerned with escalating imprisonment of vulnerable populations (ie, California Coalition For Women Prisoners) about the real effects of Prop 35.

Besides the issues above, the solutions of Prop 35 will not help trafficked people, as you see from John Vanek’s blog. It makes a great deal of sense to vote NO on Prop 35 and instead seek solutions that actually help and do no harm.